In Re: Valentine
ORDER denying 23 Motion for Leave to Appeal in forma pauperis.(Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
DAWNA MERYL VALENTINE,
July 07, 2017
David J. Bradley, Clerk
§ CIVIL ACTION NO. 3:17-CV-54
Dawn Valentine has filed a motion to proceed in forma pauperis on her current
appeal from this Court to the Fifth Circuit. (See Dkt. 22, Notice of Appeal and Dkt. 23,
Motion for Leave to Appeal IFP).
“As to determination of a motion for leave to proceed IFP on appeal, 28 U.S.C.
§ 1915(a)(3) and Federal Rule of Appellate Procedure 24(a) govern.” Cooper v. Ocwen
Loan Servicing, LLC, 3:14-CV-2795-N, 2016 WL 6208549, at *2 (N.D. Tex. Sept. 30,
2016), report and recommendation adopted, 3:14-CV-2795-N (BF), 2016 WL 6139112
(N.D. Tex. Oct. 21, 2016) (citing Johnson v. Citimortgage, Inc., No. 3:15-CV-2707-B
(BN), 2016 WL 4444336, at * 1 (N.D. Tex. June 28, 2016)). “Section 1915(a)(3)
provides that ‘[a]n appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.” Id.
Further, Rule 24(a) requires that “[e]xcept as stated in Rule 24(a)(3), a party to a
district-court action who desires to appeal in forma pauperis must file a motion in the
district court [and] must attach an affidavit that: (A) shows in the detail prescribed by
Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees
and costs; (B) claims an entitlement to redress; and (C) states the issues that the party
intends to present on appeal.” FED. R. APP. PROC. 24. The exception to this rule requires
that a party have previously been granted IFP status in the district court action, which
Valentine has not. (See Dkt. 10, Order denying Valentine’s motion to proceed IFP, and
Dkt. 17, Memorandum and Opinion and Notice to Cure Deficiencies).
Reviewing the Notice of Appeal in this case, and taking into consideration her
pleadings in this case and the Court’s previous orders, the Court finds that Valentine’s
appeal is not taken in good faith. In evaluating whether an appeal is taken in “good
faith,” the relevant inquiry is “whether the appeal involves legal points arguable on their
merits (and therefore not frivolous).” Carter v. Mossbarger, No. 16-40740, 2017 WL
2829099, at *1 (5th Cir. June 29, 2017) (citing Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted)). Good faith “does not require
that probable success be shown,” but rather “is limited to whether the appeal involves
legal points arguable on their merits (and therefore not frivolous).” United States v.
Arroyo-Jurado, 477 Fed. App’x. 150, 151 (5th Cir. 2012). “A complaint is frivolous if it
lacks an arguable basis either in law or in fact.” Kingery v. Hale, 73 Fed. App’x. 755, 755
(5th Cir. 2003).
Valentine has failed to comply with Rule 24. She has failed to provide an affidavit
“show[ing] in the detail prescribed by Form 4 of the Appendix of Forms” that she is
unable to pay to pay or to give security for fees and costs; and she has failed to specified
the issues that the she intends to present on appeal. Accordingly, for these reasons, as
well as the reasons set out in its Memorandum Opinion and Order and Notice to Cure, the
Court finds that Valentine’s appeal is not taken in good faith, and that her motion for
leave to appeal in forma pauperis should be DENIED.
SIGNED at Galveston, Texas, this 7th day of July, 2017.
George C. Hanks Jr.
United States District Judge
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